Bertke v. State

¶1Richard Arthur Bertke, pro se, Lowell, FL, for Petitioner.

¶2Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.

¶3LEWIS, J.

¶4We have for review Bertke v. State,949 So.2d 1118 (Fla. 5th DCA 2007), in which *1062 the Fifth District Court of Appeal expressly relied upon the Third District Court of Appeal's decision in Martinez v. State,933 So.2d 1155 (Fla. 3d DCA 2006), approved,981 So.2d 449 (Fla.2008). At the time the Fifth District issued its decision in Bertke, Martinez was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State,405 So.2d 418 (Fla.1981).

¶5We stayed proceedings in this case pending our disposition of Martinez. See Martinez v. State,981 So.2d 449 (Fla.2008) (approving the result—but not the reasoning—of the Third District in Martinez, upon which the Fifth District relied in Bertke). When our decision in Martinez became final, we issued an order directing respondent to show cause why we should not accept jurisdiction, quash the Bertke decision, and remand for reconsideration in light of our decision in Martinez. Upon consideration of the responses of the parties, along with petitioner's previously filed jurisdictional brief, we accept jurisdiction.

¶6We accordingly grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fifth District Court of Appeal for reconsideration upon application of this Court's decision in Martinez.

¶7It is so ordered.

¶8QUINCE, C.J., WELLS, PARIENTE, CANADY, and POLSTON, JJ., and ANSTEAD, Senior Justice, concur.